Skip to Main Content

^ Back to Top

NCLM News & Political Report

As the end of 2014 approaches, the League's Governmental Affairs team is pleased to announce the hiring of Rose Vaughan Williams as its Director of Governmental Affairs. Ms. Williams comes to the League following a distinguished career as a state agency legislative counsel, judge and private practice attorney. In 2011, she was ranked among the top 50 most influential lobbyists at the North Carolina General Assembly by the N.C. Center for Public Policy Research. Her first day with the League will be January 5. As head of the League's Governmental Affairs team, Ms. Williams will direct legislative and regulatory policy efforts on behalf of municipalities, and oversee the team's advocacy efforts aimed at promoting those policy goals.

The League was not alone in making leadership decisions over the past month; the House Republicans selected of Rep. Tim Moore of Kings Mountain as their nominee for House Speaker. The choice by the majority party almost guarantees that Moore will become the next House Speaker, replacing U.S. Sen.-elect Thom Tillis, when the General Assembly convenes in January.

In addition, Governor Pat McCrory announced that the Secretary of the N.C. Department of Environment and Natural Resources (DENR) John Skvarla will transition to Secretary of Commerce at the end of December, replacing current Commerce Secretary Sharon Decker. Governor McCrory has yet to announce Skvarla's replacement. However, DENR announced the promotion of Jon Risgaard to Wastewater Branch Chief, overseeing permitting and compliance for NPDES, Non-discharge, Pretreatment and Collection Systems program. The League is excited to work with Risgaard in this new capacity.

League Chooses Advocacy Agenda

The League nears the 2015 legislative Long Session with a targeted set of newly-approved member goals. The League's member cities and towns agreed Thursday on their legislative and regulatory priorities for the 2015-16 legislative biennium, selecting goals covering a range of topics from transportation needs to revenue options. The approval of twenty-five legislative, five regulatory and two federal priorities during the League’s Advocacy Goals Conference marked the culmination of more than six months of work by policy committees, the League’s Board of Directors and the League’s general membership. The five priority regulatory goals read as follows:

  • Seek more open, transparent and flexible regulatory procedures that support solutions addressing nutrient impairment in waters based on current site-specific data and analysis, demonstrate use impairment, assign responsibility proportionate to the source of impairment, and equitably hold accountable all contributors to the impairment.
  • Seek policies that provide flexibility when implementing programs guided by water quality standards adopted through the triennial review process.
  • Seek administrative changes to water, wastewater, and stormwater infrastructure funding programs to prioritize public projects that: repair, rehabilitate, or replace existing failing infrastructure; reduce nonpoint source pollution, even when a permit condition requires the measures; protect or improve the quality of drinking water sources; assist systems in managing assets; contain a long-range planning components; incentivize innovative projects; or address impaired waters.
  • Support legislation to create a legal framework that recognizes the rights of municipal government to allocations from navigable and non-navigable waterway resources in an amount adequate to meet the community's long-range water supply needs.
  • Seek legislation that restores and clarifies municipalities' ability create stream, wetland, nutrient and buffer mitigation banks and provides methods and procedures for doing so.

The package of policy goals are the culmination of a year-long policy development process in which the membership's policy committees held dozens of meetings to sift through goal suggestions and make recommendations for the membership's consideration. Two of these committees evaluated environment-related goals: the Regulatory Action Committee and the Planning & Environment Legislative Action Committee. The League is proud of this robust member-driven goals process and thanks the over 150 individuals serving on these committees who worked to produce a thoughtful set of policy aims for the organization.

^ Back to Top

League Releases Template for New Plan Review Requirements

The League released a report template Friday for local government development plan review programs to use in meeting the requirements of a new state law that became effective December 1. Developed in conjunction with the N.C. Association of County Commissioners, the template and accompanying guidance provides a test for determining which development plan review programs must implement new procedures and file a report.

The “Reform Agency Review of Engineering Work” provisions included in the Regulatory Reform Act of 2014 sought to standardize some aspects of plan review and included reporting requirements for a “regulatory authority” that makes a review of a regulatory submittal for a permit, license, or approval. A "regulated authority" was defined as:

  • the N.C. Department of Environment and Natural Resources (DENR),
  • the N.C. Department of Health and Human Services (DHHS), and
  • any unit of local government operating a program
    • that grants permits, licenses, or approvals to the public and
    • that is either “approved by” or “delegated” from DENR or DHHS.

Some of those programs include sedimentation/erosion control, stormwater, and water/sewer design reviews. The League guidance also contains an explanation and copy of the law (scroll to Section 29, pg. 22). The new requirements were motivated by a professional engineers' group, which sought to standardize some aspects of plan review and use of the title "engineer." All affected local government programs must electronically file a report by January 14, 2015, with Mariah Matheson, Commission Assistant, Environmental Review Commission, at

^ Back to Top

EPA Updates Stormwater TMDL Guidance

The U.S. Environmental Protection Agency (EPA) released a memo last month to serve as new guidance regarding stormwater-related water body clean-up plans, or Total Maximum Daily Loads (TMDLs). This guidance is of particular interest to League members because only stormwater permit-holders implement control measures in response to a stormwater TMDL. Over 100 N.C. cities and towns hold stormwater permits.

EPA's November 26 memo served as an update to its controversial 2010 guidance, which based TMDLs on stormwater flow -- an approach many critics thought did not represent a valid method for water body recovery. Although the recently released guidance removed the flow approach, it still included references to numeric effluent limits represented as a percentage or amount of effective impervious coverage, which could be viewed as a surrogate to flow.

Total Maximum Daily Loads

Dictated by the federal Clean Water Act (CWA), a TMDL is a "water pollution diet" for an impaired body of water; it is a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards. The aim of a TMDL plan is to limit water pollution sources and eventually result in more robust aquatic health in the water. State and federal regulators use TMDLs to establish limits on pollutant sources, assigned as waste load allocations (WLAs) to sources with National Pollution Discharge Elimination System (NPDES) permits. With a WLA, regulators apportion the pollutant of interest to identified dischargers and implement pollutant reductions through each discharger's NPDES permit.

Local governments and some industrial dischargers bear the brunt of TMDL compliance costs because only discharge permit holders are held responsible for controlling pollution sources. Adding to that burden, in some cases, are unregulated sources of pollution such as agricultural operations, failing septic systems, and fertilizer applications on private property. Those sources may contribute much more to water quality impairment than local government-controlled sources.

In the case of stormwater TMDLs, municipal separate storm sewer system (MS4) NPDES permit-holders bear the responsibility for and cost of improving water quality. Many of the League’s members hold MS4 NPDES permits, and more members are brought into the MS4 permitting program every year through an annual Phase II designation process.

Details of 2014 Memo

The updated memo removed the controversial flow approach, but included references to numeric effluent limits represented as a percentage or amount of effective impervious coverage. In addition, the 2014 guidance explained EPA's vision that if best management practices (BMPs) were shown to be inadequate to meet CWA requirements, the agency advised state regulators to update stormwater discharge permits with specific conditions or limitations on pollutant discharges.

To that end, EPA stated that numeric effluent limitations established a more objective and accountable means for reducing pollutant discharges than BMPs, and the agency recommended that state MS4 permitting authorities exercise discretion to include "clear, specific, and measurable permit requirements and, where feasible, numeric effluent limitations as necessary to meet water quality standards." The memo also pointed to a recently-released MS4 Compendium as demonstrating examples of specific NPDES permit requirements that were effective at achieving water quality targets, including those expressed in both numeric and non-numeric forms.

Numeric discharge limits represent a significant departure from previous stormwater regulatory efforts and could force more intense community investments in stormwater infrastructure. So although EPA's 2014 memo was non-binding guidance, the regulated community nationwide already expressed concern that EPA may pressure permitting agencies to include numeric effluent limitations in NPDES stormwater permits. In North Carolina, the N.C. Division of Energy, Mineral and Land Resources will renew a majority of the state's Phase II permits in fall 2016, and the agency indicated to the League that it does not expect major changes to its regulatory approach.

History of EPA's Guidance

EPA released its original TMDL stormwater guidance in 2002, recognizing that stormwater dischargers were significant contributors to water quality impairment and that stormwater management solutions existed that could protect water bodies. The 2002 guidance recommended that NPDES-regulated stormwater discharges have limits expressed as best management practices (BMPs) rather than as restrictive numeric effluent limits. EPA favored an iterative and adaptive BMP approach as permitting agencies gained more experience and knowledge in developing stormwater TMDLs.

The 2010 guidance was EPA's attempt to update four points of its 2002 memo to reflect knowledge regulators had gained, specifically:

  • providing numeric water-quality based effluent limits for stormwater discharge permits,
  • disaggregating stormwater sources in a WLA,
  • using surrogates for pollutant parameters when establishing TMDL loading capacity targets, and
  • designating additional stormwater sources to regulate under the NPDES program.

However, the changes represented a large shift from the 2002 BMP approach to water quality limits and were met with sharp criticism, including objections to the stormwater flow approach. The League and other groups objected and argued in comments that because stormwater flow was not a pollutant with a water quality standard, it cannot legally form the basis of a TMDL.

Using the 2010 guidance including the flow approach, the N.C. Department of Environment and Natural Resources (DENR) drafted a stormwater flow TMDL for Little Alamance Creek in 2011, which was ultimately withdrawn. In response to the concerns voiced by the League and other local government groups, DENR allowed the governmental units affected by the proposed Little Alamance Creek TMDL to instead formulate an alternative water body clean-up plan under a set of guidelines for a Category 4(b) demonstration. Burlington, Graham, and NCDOT submitted their draft Category 4b demonstration plan to DENR in August, and it now awaits EPA approval.

^ Back to Top

Feds Issue Long-awaited Affordability Framework

Marking an momentous win for cities, the U.S. Environmental Protection Agency (EPA) released its new Financial Capability Framework for developing schedules and assessing a municipality’s ability to pay for projects necessary to comply with Clean Water Act (CWA). Previously, the agency's measure of affordability was limited only to an evaluation of a customer's ability to pay, based on the jurisdiction's median household income. The National League of Cities spent years negotiating this updated framework with EPA and other national groups representing local governments.

Responding to concerns that costly water and wastewater mandates dramatically impact citizens with low incomes, EPA included new factors that enforcement officials may consider in negotiating compliance schedules to bring systems into compliance with their permits and EPA consent decrees. By releasing the framework, EPA recognized the challenges local governments face in balancing environmental protection with economic feasibility. EPA stated that it recognized local governments want to provide clean water for their communities, but face difficult economic challenges with limited resources and different financial capabilities. The federal agency also acknowledged local governments' essential role in providing wastewater and stormwater infrastructure and services for their citizens, and their programs implemented to improve water quality and attain CWA objectives.

In light of those realities, EPA's framework moved away from its previous use of a "two percent of median household income" measure as the sole indicator of a community's ability to pay. Instead, the new framework included a broader set of considerations of water systems' financial conditions, clarifying how regulators would calculate the financial capability of a community to comply with regulatory mandates. Examples of those broader considerations were part of a two-phased approach that included:

Impact on residential customers.

    • income distribution by quintile, geography, or other breakdown, illustrating how income distribution in the service area differed from comparable data on the national level or for similar cities;
    • the income distribution in cities that have adopted differential rates for low-income customers;
    • service area poverty rates and trends;
    • projected, current and historical sewer and stormwater fees as a percentage of household income, quintile, geography or other breakdown;
    • information on sewer and water usage for various classes of ratepayers or by type of residence; and
    • percentage of households who own versus rent.

Municipality's financial strength.

    • historical population trends or population projections;
    • service area unemployment data and trends, or other labor market indicators;
    • rate or revenue models;
    • rate determination studies used to develop and support recent rate increases;
    • data and trends on late payments, disconnection notices, service terminations, uncollectable accounts, or revenue collection rates;
    • historical increases in rates or other dedicated revenue streams;
    • state or local legal restrictions or limitations on property taxes, other revenue streams or debt levels;
    • other costs or financial obligations, such as those related to drinking water or other infrastructure, that significantly affect a permittee’s ability to raise revenue;
    • circumstances that may affect a permittee’s bond rating; and
    • financial plans that showed the implications of incurring additional debt for a permittee’s ability to secure financing.

In addition, the framework allows the assessment to look at other conditions affecting financial strength, including "extraordinary stressors such as those from natural disasters, municipal bankruptcies, unusual capital market conditions, or other situations which impact a permittee’s ability to raise revenue or acquire needed financing." EPA stressed that the examples given were not intended to be a complete list, nor will all be relevant in every community.

^ Back to Top

Regulatory Briefs

DENR announced that the agency would hold its first stakeholder meeting to gather input on refining implementation strategies for the source water protection plan requirement of HB894 today...DWR announced its new web-based Tar-Pamlico River Basin water resources plan and planned to accept comments until January 30...DEMLR’s stormwater permitting program recently updated the state lists of certified BMP reviewers and local governments certified to approve stormwater management plans, and announced its next reviewer certification course for January 13-14...EPA sent its proposed CWA pretreatment standards for shale gas wastewater discharged to POTWs to the White House OMB for pre-publication review...At the same time, OMB completed its review of a supplemental notice for EPA's proposed e-reporting rule, and it was noticed in the Federal Register with comments due January 30...In addition, EPA announced that ts final CWA jurisdictional rule would resolve how to address the issue of grandfathering waters that the U.S. Corps of Engineers already deemed non-jurisdictional...EPA also agreed to integrate its systems used to track state projects that received drinking water SRF funds to better demonstrate public health benefits...EPA's Environment Appeals Board heard oral arguments testing the agency's claim that municipalities operating satellite sewer systems should be subject to CWA permit mandates, a case that could bring more systems under regulatory control...An EPA advisory group considering updates to the lead and copper rule expressed support of requiring drinking water utilities to replace all portions of lead service lines to reduce lead in levels in drinking water, although legal questions remain over whether EPA could mandate the replacements...The 8th Circuit Court of Appeals heard oral arguments and appeared to support claims that property owners can pursue judicial review of CWA jurisdiction determinations prior to regulatory agencies taking action by either issuing a permit or taking enforcement action, which could result in a circuit split and force the Supreme Court to weigh in on the issue...Meanwhile, U.S. Circuit judges heard oral arguments regarding challenges over EPA's rule exempting water transfers from CWA permit requirements, indicating that they may decide the case on site specific factors and avoid a ruling on the water transfer rule...The U.S. Senate unanimously approved a bill that would require EPA to establish a health advisory for microcystin, a toxin that can create algal blooms; it would also require that EPA report to Congress on whether an enforceable drinking water standard for microcystin is needed...The CDC released interim guidance for workers handling untreated sewage from individuals with the Ebola virus, focusing on the type of personal protective equipment to be used and reiterating that wastewater handling processes in the U.S. were designed to inactivate and remove pathogens.

^ Back to Top

NCLM and State Government Environmental Meetings & Events